Archive for June, 2012

Marc DeGirolami has a post bearing this title over at CLR Forum. The post reports on yesterday’s Fourth Circuit decision in Moss v. Spartansburg County School District Seven. Judge Niemeyer wrote the opinion for the court, in which Judge Gregory and Judge Wynn joined.

Apart from its discussion of substantive Establishment Clause principles, the opinion may be of interest for its assessment of Establishment Clause standing (an area of the law that could probably use some rethinking).

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Justin Levitt has a post with this title at Election Law Blog, with an overview and links to coverage. The decision happened yesterday, in United States v. Danielczyk. (See here for my oral argument preview and a link to AP coverage of the oral argument itself.)

Judge Gregory wrote the opinion, which was joined in by Chief Judge Traxler and Judge Diaz. This opinion must have brought Judge Gregory some satisfaction. The controlling Supreme Court decision, FEC v. Beaumont, came to the Supreme Court out of the Fourth Circuit. Judge Gregory authored a panel dissent in that case, and the outcome he advocated in dissent was adopted by the Supreme Court.

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. . . Brian Beutler of Talking Points Memo, for this post from the first day of oral arguments, titled “John Roberts May Have Tipped His Hand On ‘Obamacare’ Reasoning.”

In last place, yours truly, for this post in response titled “Roberts did not ‘tip his hand’ today and suggest that the PPACA is valid under the taxing power.”

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Both sides can claim victory of a sort, though their wins come at a price.

The Obama Administration and congressional Democrats won on the mandate’s enforceability. But they now own it politically as a tax.

The States won a real choice on Medicaid expansion. But they may not wish to have to make that choice.

The challengers won real limits on federal regulatory power under the Commerce Clause. But they lost on the ultimate judgment of constitutionality.

The real winner of this decision is Chief Justice Roberts. Today’s decision makes clear that this is the Roberts Court, not the Kennedy Court, as many have called it.

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I’ve been told, and I recognize, that Joseph Vining’s writing can be difficult to understand. But if there is one day in recent memory when his comparison of the practice of law to the practice of theology can be understood, it is today. Here are some of his thoughts:

The parallels between the practice of law and the practice of theology are too striking for the lawyer not to see. They are also comforting, which makes them easier to see. For lawyers are required by the customs of the profession in which they are imperceptibly trained from the first day of law school, as well as by its discipline, to behave in ways that any adult, self-respecting, and free man must think either offensive or mad. If the lay citizen faces a dilemma in obeying what he is told is the law, lawyers face it even more. They are taught that they must be more obedient than other citizens, and this is reinforced by etiquette. They stand when an individual in a special robe enters the room where they are to do law, and takes a seat on a raised dais. They stand when that individual leaves the room. The architecture of the room and of the building containing the room is designed to produce respect, even awe. They are punished for anything resembling contempt in their gesture and phrasing, and say, “Yes, your Honor,” when reprimanded. They accept reprimand and correction given in a tone that only children experience outside the courtroom. They address this person to whom they speak, who issues reprimands, corrections, and statements that must be obeyed, with an ancient title, a title of the kind otherwise eliminated from American mouths, beginning with the word “Your” and followed by a word which might be Excellency, Majesty, Reverence, or Grace. In the case at hand, it is Honor. Even the most prominent lawyers appearing before the Supreme Court speak in tones of deference and in elaborate circumlocutions which hide the fact that they are instructing, guiding, or disagreeing with the justices before them; the most careless, ill-informed, foolish, or malicious questions are treated with an elaborate show of seriousness. If lawyers lose the habit of self-effacement and self-abasement they lose credibility and the ear of the judge to whom they are speaking, who turns away if he is not treated with the respect he thinks his due. Lawyers engage in overt and elaborate supplication, as does almost no one else in modern society. They begin, “May it please the court,” and in the end they “pray” for relief. And everything they say must be backed by authority. Indeed, they do best if they say a thing not in their own words but in the form of a quotation from authority, as if the ultimate end of and best demonstration of obedience and self-abasement is to eliminate themselves from view. Despite the seriousness of it all, which bespeaks a conviction that what they decide to say matters, and despite the heat of the argument the words they speak are never claimed to be their own. (And when a man in robes speaks he will say “We” or much more often “The law” or “This Court,” referring not to himself or himself and his colleagues but to the Court speaking over time.) When they get down to business, after their forms of greeting and stationing themselves and in between their modes of address and before their prayers, what do lawyers do? They hurl quotations at each other.

* * *

Where else do free, grown, thinking, and sane men and women behave in this way and in such an atmosphere? Where else do individuals in robes sit on a raised dais in the center of a room designed to evoke awe and respect? Where else do men conceive of themselves as supplicating, and say explicitly that they are praying for relief? Where else can be found men and women dressed in their best and most sober clothes engaging in self-abasement, where respect enforced by custom and discipline, where absence of direct challenge, use of titles, faith demanded at the outset? Where else but the church?

Now of course there are many churches, and the behavior of men and women in them varies in the respects just enumerated and thus in the degree of their resemblance to the legal profession. But in one respect, I think, they do not vary. They all look to authoritative texts. This they do not do just for the regulation of their ritual behavior, for which the authority of the text is almost a matter of definition. At least in the Western world questions about what to do in the world and how to think are settled by appeals to authority. If the authoritative statement is uttered by an official, it is made after reference to an argument about written texts. The agreement of religions on this point, this point of method, and their identity in this regard with law, is remarkable. It matters not whether the religion be hierarchically or pyramidally organized, like the Roman Catholic or the Protestant Episcopal or the Mormon, organized in a more horizontal fashion with occasional convocations to settle issues of basic doctrine, like the Presbyterian or Calvinist  churches, or not formally organized at all except through educational and social institutions, like the Jewish, radical Protestant, and Muslim groups. All value learning in the ancient sense of the term, as lawyers do. They think naturally in terms of authority, as lawyers do. Indeed they have the same difficulty lawyers do in bringing other disciplines to bear in education–the same fear of teaching something other than “the law”–or, in argument, in making reference to psychology, sociology, or even ethics. And they have the same difficulty lawyers do in deciding what the materials of discourse appropriate for analysis should be. Is what a priest or minister says in preaching or counseling evidence from which understanding can be drawn? Is what is said in arguments before courts, in letters of opinion, in counseling or in negotiation, material for legal study? Or would the inclusion of some or all of these make the practice of legal method or theological method impossible and lead to the loss of the legal or the divine?

In fact, a traveler coming upon the United States would have to wonder at the frequency and vehemence of the assertion that ours is a secular state. He would look round at the temples in the centers of towns, containing men in long robes and disputants arguing about, commenting upon, and organizing a canon of received texts, and then observe that there is no tolerance whatever on the question whether individuals shall be subjected to this regime or required on occasion to attend its ceremonies in person. Of course, what he would find on close observation is not slavery but a high degree of belief and willing obedience and an insistence by many, not at all paradoxical, that their freedom depended upon their belief. He would conclude, I think, that the term “secular” was being used in an odd way, and that the Founding Fathers’ aversion to a certain kind of Christianity inconsistent with human dignity, to the silliness of the eighteenth-century English established church with its condescension, corruption, and entwinement with a hierarchical social order, to the Catholicism of the Medicis, Richelieu, Bloody Mary, and Philip, all of which may be thought to have produced the First Amendment, was not, for all that, a rejection of the theological heritage.

If the charge of foolishness stands, it stands against both lawyer and divine. How can they spend their time doing what they do, and respect themselves for it? The theologian has the claim, which the lawyer does not, that the statements to which he confines his attention or pays particularly close attention were made by men into whose ears God was whispering. But this does not in itself produce meaning or understanding. With the exception of sitting popes or convocations, the texts were written by men separated from the present listener and user of them by even more of a gulf, of time, culture, and language, than separates dead and aged judges from the lawyers who appeal to their statements. Why pay such attention to what a smelly, querulous old man, in goatskins, said three thousand years ago if what he says does not command attention by its intrinsic beauty and insight? Why pay attention to passages that are obscure and dull, in a constitution, a statute, an opinion of the justices, or a book of the Bible? Why write commentaries on them, and commentaries upon commentaries? The very selection of religious texts may be conventional, the result of human decisions, perhaps even bargains, threats and pressure in the legislative sessions of ancient convocations. Where is the profit in all this?

Might we not be generous and self-confident enough to say that what lawyers and divines seem to be doing is not what they are really doing? If theologians are asked why they do what they do, they respond that they are trying to save the world and redeem us. They are seeking knowledge of meaning, purpose, the hidden, the invisible. They do it in the only way they know. No one has ever supplied a better. Lawyers are too shy to give the same response, or too wedded to the bravado of tough-mindedness. But it sometimes seems that in a modern, secular American university the law school is the one place where meaning and purpose are discussed in a systematic way. Science cannot allow the presence of mind. But men, law, and theology, not to speak of literature and art, cannot do without it. And it seems to be true of our existence so far, that the presence of mind, the experience and acknowledgment of authority, and a special method of argument and analysis, are all bound together, with authoritarianism and its reflection in institutional and linguistic form tagging along, as imperfection is always known to dog man, perhaps indeed serving as something of a shield against the blinding demands of the fully authoritative. Both lawyer and theologian argue from texts because otherwise there is nothing particular to talk about. They cannot do without texts any more than the novelist can do without life. But there is always something behind the texts. There is no understanding of them without interpretation, and no interpretation without creation and imagination, reaching behind to what is there for us now.

Joseph Vining, The Authoritative and the Authoritarian 188-92 (1986).

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An important but overlooked case due to be decided tomorrow is First American Financial Corp. v. Edwards. The case is about Article III standing. The Court is reviewing a Ninth Circuit decision that set forth a permissive approach to congressionally created standing. I expect that the Court will view the Ninth Circuit’s approach as too permissive but nevertheless conclude that the plaintiff has standing. If there were five sure votes in the opposite direction, I would have expected to see the decision before now. We shall see soon enough.

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A split panel of the Fourth Circuit has handed First Amendment victories to pro-life pregnancy resource centers in the City of Baltimore and Montgomery County, Maryland. The decisions in these two cases hold that Baltimore and Montgomery County violated the First Amendment by requiring pregnancy resource centers to post signs indicating that their services were limited in certain ways. The majority opinions in Greater Baltimore Center for Pregnancy Concerns Inc. v. Baltimore and Centro Tepeyac v. Montgomery County reason that these ordinances compel noncommercial speech and fail strict scrutiny. Judge Niemeyer wrote the majority opinions in both cases, in which Judge Agee joined. Judge King dissented in both cases. (For my coverage of the oral argument in these appeals, see here. Howard Bashman has links to early news coverage at How Appealing.)

There is much that one can say about these cases as a matter of First Amendment law. But in this post I want to highlight some of the court dynamics revealed in the opinions.

First, this kind of panel alignment is one that has led to en banc reconsideration in the recent past. For example, Judge Niemeyer wrote the panel opinions in two Abu Ghraib contractor cases that were joined in by another Republican appointee and that drew a procedurally focused dissent from Judge King. But I would be surprised if the Fourth Circuit were to take these First Amendment cases en banc. Much of Judge King’s dissents in these two cases focus on case-specific things rather than basic principles of First Amendment law. And the ordinances do appear to have a “least restrictive means” problem, at a minimum.

Second, some of Judge King’s language in dissent is arresting. The concluding sentence of the introduction to Judge King’s dissent in the Baltimore case is particularly strongly worded: “Because these proceedings have thus followed a course more fitting a kangaroo court than a court of the United States, I write separately in dissent.” This “kangaroo court” accusation is much harsher than language that the Fourth Circuit itself  has sharply criticized when used by counsel. See, for example, footnote 4 of United States v. Venable, which was joined in by Judge King.

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[W]hen one truly takes into account a consideration or an end or a consequence or the avoidance of a consequence, one does not weigh it so much as one seeks it. What is authoritative does not so much restrain one as it animates and feeds one’s thought. And it is this that the metaphor of mind as weighing and of analysis as supplying or discovering grounds for decision, with its various geographical and gravity-derived associations and images, fails to convey. The value, the end, the consideration, feeds into the imagination, the cunning, the resourcefulness of the decision maker. The value might as well be a dead thing from the description of it in the common metaphors of the process of decision making—one speaks of a “dead weight”—whereas it is a warm thing, living if you will, and the authoritative decision maker is warm toward it.

Joseph Vining, The Authoritative and the Authoritarian 177-78 (1986).

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Justice Kennedy’s vote on the constitutionality of the individual mandate is bound to be a disappointment regardless of how he votes.

Two decades ago, it was widely expected that he would vote to overturn Roe v. Wade and return state abortion legislation to rational basis review. And he did vote that way . . . only to later switch and vote another way. If Justice Kennedy follows his Casey pattern, that means he will have voted at conference to hold the individual mandate unconstitutional, only to switch his vote some time during writing. That would be a disappointment to many.

But Justice Kennedy’s Casey vote did not work out quite as he anticipated, as his dissent in Stenberg v. Carhart and his opinion for the Court in in Gonzales v. Carhart bear out. Moreover, Justice Kennedy may still be nursing resentment over his Flipper reputation from October 1991 Term (which brought both Casey and Lee v. Weisman). Perhaps he learned from Casey that he should not flip his vote in cases of that magnitude. And if that was his takeaway from Casey for the individual mandate ruling, then he not only voted at conference to hold the individual mandate unconstitutional, but also did not switch to the other side during writing.

Yet Justice Kennedy’s contemplation of a 5-4 split down the lines of partisan appointments may have brought to mind Bush v. Gore . . . leading to no change at all. For Justice Kennedy simply cannot understand why anyone would question the Court’s leanings and rulings from that case alone. In his view, the Bush v. Gore majority was–obviously–only deciding based on its best understanding of the law. And even if Justice Kennedy had worries about public perception, the unpopularity of the individual mandate (which is much less popular now than Al Gore was then) provides some insulation for the Court.

For all these reasons, it will be most interesting to see if Justice Kennedy thinks that stare decisis means the same thing for Raich as it did for Roe.

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The Fourth Circuit issued a published opinion in two argued cases today. The result in each case was to vacate and remand a decision out of the Eastern District of Virginia. That may be all that the decisions have in common, however. The first decision left the central issue open for resolution on remand after articulating the legal test for the district court to apply, while the second decision resolved the central issue while seemingly adopting a newly constrictive test.

In Oberg v. Kentucky Higher Education Student Loan Corporation, the court addressed whether corporations organized by Kentucky, Pennsylvania, Vermont and Arkansas were “persons” subject to suit under the False Claims Act, or instead “state agencies” not subject to suit under the False Claims Act as interpreted in Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765, 787-88 (2000). The appeals court held that the district court applied the wrong legal test in deciding that the corporations were not subject to suit. The Fourth Circuit vacated and remanded for district court application of the test developed under the test that is also used for the “arm of the state” prong of sovereign immunity analysis. Judge Motz wrote the opinion for the court, in which Chief Judge Traxler and Judge Keenan joined.

In Friends of Back Bay v. U.S. Army Corps of Engineers, the court held that the Army Corps of Engineers improperly issued a permit without completing an EIS under NEPA. Among other things, the court near the end of its opinion aligned the Fourth Circuit with the Second Circuit in stating that “the policy goals underlying NEPA are best served if agencies err in favor of preparation of an EIS when . . . there is a substantial possibility that the [proposed] action may have a significant impact on the environment.” I am not a NEPA expert, but the appellate court’s application of the various EIS factors and its adoption of the Second Circuit’s “substantial possibility” test seemed somewhat casual. Judge King wrote the opinion for the court, in which Judge Gregory and Judge Floyd joined.

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Over at Jost on Justice, Kenneth Jost has a post blaming the Republican party for politicizing the Supreme Court through nominations dating back to the Nixon Presidency. (HT: Howard Bashman, How Appealing) By repeating what Justice Lewis Powell has previously described as the “mindless misjoinder” of Haynsworth’s name with Harold Carswell’s, the post unfairly insults Judge Clement Haynsworth in service of an overtly partisan account of Supreme Court nomination history.

The gist of Jost’s post is that, although it is tempting to blame both major parties for politicizing the Supreme Court, “a longer historical perspective makes clear that it is the Republican Party that has politicized the Supreme Court, deliberately and wantonly, with little if any regard for the potential damage to the court’s long-term ability to maintain public confidence.” Jost then follows with a three-paragraph accounting of Republican nomination practices.*

In discussing nominations for the seat vacated by Fortas, Jost writes that “Nixon’s two rejected nominees – Clement Haynesworth and G. Harrold Carswell – insulted the court’s dignity.” Apart from misspelling Haynsworth’s name, Jost’s decision to lump these two nominees together suggests a lack of care. I’m not aware of any scholarly or popular history arguing that Haynsworth and Carswell were comparable jurists. Indeed, the record is to the contrary.

Yes, Judge Carswell was an underwhelming candidate for the Supreme Court. Carswell’s nomination occasioned  Senator Roman Hruska’s famous remarks about judicial mediocrity: “Even if he were mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren’t they, and a little chance? We can’t have all Brandeises, Frankfurters and Cardozos.”

Haynsworth was no mediocrity. Here is what Justice Lewis Powell wrote in the foreword to a 1991 book about Haynsworth’s nomination:

[Haynsworth] was appointed by President Eisenhower in 1957 to the United States Court of Appeals for the Fourth Circuit, which was headquartered in my home city of Richmond. His appointment was widely approved by the bar, as his qualifications for the federal bench were the highest.

* * *

His obituary in the Washington Post of November 23, 1989, correctly stated that Haynsworth “brought to the bench a reputation as a top-flight lawyer . . . [whose] judicial opinions were known for the workmanlike way in which they were crafted.”

* * * When Justice Fortas resigned, the president nominated Clement Haynsworth. I strongly supported him and was successful in obtaining support for the nomination for the nomination from all but one of the past presidents of the American Bar Association. Despite wide support for Haynsworth from the bar and from leaders in the South, the Senate by a vote of fifty-five to forty-five rejected the nomination.

I repeat what I have said before: The defeat of this eminently qualified jurist was “purely political” and reflected adversely on the Senate rather than on Clement Haynsworth. He accepted his defeat with grace and without bitterness. * * *

As may be evident from what I have said, in my view Clement Haynsworth was an exceptionally able–indeed a distinguished–federal judge. As John P. Frank, the author of this book, emphasizes, Haynsworth also was “a perfect gentleman,” a loyal friend, and as fine a human being as I have ever known.

After Haynsworth was not confirmed, the president nominated G. Harrold Carswell, an undistinguished federal judge from Florida. References were frequently made in the press and elsewhere to “the Haynsworth and Carswell” nominations, despite the fact that two more dissimilar judges would not be easy to find. Yet, this mindless misjoinder of names occasionally is made even today.

* * *

America lost the services of a potentially great Supreme Court justice when the Senate defeated Judge Haynsworth’s nomination. But America’s loss was the fourth circuit’s gain. * * * Certainly, his nomination and defeat were significant events in American history. For me, at least, he left a much more significant mark on American law through his scholarly and distinguished opinions as a fourth circuit judge. Indeed, I believe it was the quality of his work on the fourth circuit after his defeat that has led many to recognize the injustice of the Senate’s 1969 vote.

Lewis F. Powell, Jr., Foreword ix-xi (emphasis added), in John P. Frank, Clement Haynsworth, the Senate, and the Supreme Court (University of Virginia Press 1991).

* There is more to disagree with in Jost’s opinionated rendition than his treatment of Judge Haynsworth. For example, whatever other objections one may have to President Reagan’s nomination of Antonin Scalia, it is simply wrong to assert that the “selection of Antonin Scalia for Rehnquist’s seat amounted to a conservative poke-in-the-eye to bipartisanship.” Justice Scalia was confirmed by a Senate vote of 98-0. But I’m only concerned in this post to take sharp issue with Jost’s characterization of Haynsworth.

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The age of interdisciplinarity is upon us, and the full implications of that fact have only recently begun to “sink in.” The legal academy includes the smart and the quick, generalists who can take in a distinction, theory, or concept, and put it to brilliant use. And most of the time, that is good enough. If a subtlety is missed or an intricate distinction elided, the money point remains. But the standard for “good enough” is independent of the sociology and psychology of the legal academy. Even the sharp and the quick can miss something fundamental. Sometimes if a subtlety is missed or an intricate distinction is elided, the money point simply disappears. The currency of legal theory is truth. Cleverness lacks cash value.

Lawrence B. Solum, Semantic Originalism at 93

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To work effectively with statutes, just as with cases, it is necessary to have some kind of guiding notion, either articulate or inarticulate, about what you are doing and why. These materials proceed on the assumption that a working theory which is consciously developed and articulate is better than one which is taken for granted upon unexamined premises and hence inarticulate. They try to provide the wherewithal for the development of such a theory. But in embarking upon this enterprise it is important not to be misled about the nature of it.

Do not expect anybody’s theory of statutory interpretation, whether it is your own or somebody else’s, to be an accurate statement of what courts actually do with statutes. The hard truth of the matter is that American courts have no intelligible, generally accepted, and consistently applied theory of statutory interpretation.

When an effort is made to formulate a sound and workable theory, therefore, the most that can be hoped for is that it will have some foundation in experience and in the best practice of the wisest judges, and that it will be well calculated to serve the ultimate purposes of law.

Henry M. Hart, Jr. & Albert M. Sacks, The Legal Process: Basic Problems in the Making and Application of Law 1169 (tent. ed. 1958), as edited by William N. Eskridge, Jr. & Phillip P. Frickey (Foundation Press 1994).

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